Article Archive:

Road Rights- Traffic Injustice, Part II

By Bob Mionske

In November, I wrote the first of what I promised would be a two-part column on traffic injustice. Since then, breaking news on the situation in Philadelphia and the Los Angeles road rage trial necessitated coverage of those issues. Now, with this column, we return to the prior issue.

“You can’t cycle anywhere safely and that has to do with the attitude being perpetuated by no charges being laid.” -Anthony Humphreys, Board Member, Toronto Cyclists Union

It was only a few short weeks ago, as the year changed, that somebody, somewhere, fired off a gun to ring in the New Year. The bullet rocketed skyward, until the inexorable pull of gravity slowed its ascent, and it arced back to earth. A mile away, it slammed into an innocent New Year’s reveler, killing him instantly.

Police recovered the bullet, and based on tips, apprehended the shooter. Ballistics tests confirmed that the bullet came from the shooter’s gun. The only question now was whether the shooter should be charged with a noise complaint, or if he should be let go, perhaps with a warning to be more quiet in the future.

Improbable? Of course it is.

The “incident” described is fictitious, but that’s not what makes it improbable. No, what makes this depiction impossible to buy is that no law enforcement agency, and no District Attorney’s office, would treat this unintentional death as “just an accident” unworthy of serious charges; no chorus of apologists would assure us that the shooter’s regret is “punishment enough”; and if brought to trial, no jury of his peers would acquit him, thinking, “There but for the grace of God go I.”

And yet, when the instrument of injury and death is an automobile in the hands of a careless driver, that is often exactly what happens.

Each year more than 700 cyclists are killed by drivers on our nation’s roads while another 62,000 are injured. In the United States, the total annual death toll inflicted by drivers averages in excess of 40,000 people. It’s the equivalent of two jumbo jets crashing every single week, all year long, every single year, or entire towns being wiped off the face of the Earth. Salem, Massachusetts last year; Hoboken, New Jersey this year, and Twin Falls, Idaho next year. Every single year.

When 2,750 people lost their lives in the collapse of the World Trade Center, we went to war, invading two nations at a total cost to date approaching $1 trillion. When 2,750 people lose their lives on our nation’s highways every three weeks, month in, month out, every single year, we do nothing.

Well, that’s not an entirely fair comparison, because most highway deaths are the result of negligent driving, rather than an intentional act—and if reckless or intentional behavior is involved, those drivers are prosecuted. But when somebody is merely careless with lethal machinery, and lives are lost in an entirely preventable “accident,” we do nothing. Or we charge the driver with a minor offense that does not reflect the seriousness of the driver’s behavior. At most, a small fine is assessed. Automobile crashes are the leading cause of death from age one to 29. If our children were being felled by a fatal disease, we would spend vast sums to find a cure. But when the leading cause of childhood death is entirely preventable, we throw up our collective hands and say, “What can be done?”

Why can’t we do anything about it?

Partly because, as Andy Thornley of the San Francisco Bicycle Coalition observes, people are poor judges of risk. We get upset about rare occurrences, but are blasé about common occurrences. Thus, we accept the high annual automotive death toll as the “cost of doing business,” but treat unlikely events that almost never happen—like a would-be terrorist attempting to blow up a Detroit-bound plane on Christmas Day—as crises. Well, perhaps they are crises, but what about the more serious, and much more common threat to our lives—isn’t that also a crisis? We ignore that more serious threat in part because it happens daily, and we’ve become inured to it, and in part because we are complicit in the carnage. We are all negligent at one time or another, and therefore can quite legitimately feel that, “There but for the Grace of God go I.” We can remember all the times we took our attention off the road, or violated a traffic law, and are reluctant to hold another driver accountable when that same behavior leads to someone’s death. Yet when the negligent behavior is of a type we don’t engage in, we find the lapse in due care less excusable; thus, the entire nation’s attention was focused on two pilots who failed to notice when they overshot the Minneapolis-St. Paul airport. If we were all pilots maybe that incident would’ve elicited the same “There but for the grace of God go I,” shrug of our collective shoulders.

As the annual automotive death toll attests, we are all exposed to the risks created by negligent driving. However, the harm cyclists suffer is greater, because our bodies are not protected by steel crumple zones. Minor crashes caused by simple negligence typically result in a fender bender when two drivers collide. But when that same encounter is between a driver and a cyclist the crash becomes more serious, resulting in bodily injury, or even death, for the cyclist. For example, when a driver fails to yield the right of way while turning, that driver’s mistake may result in some damage to another driver’s vehicle. But if the “other driver” is riding a bike, the resulting collision can be fatal. It usually takes a more serious degree of negligence (for example, drunk driving or excessive speed) for a driver to injure or kill another driver. And when that happens, prosecutors can use that more serious degree of negligence to bring the offender to justice. But when the offending driver has been merely inattentive — “I didn’t see him” is the most common excuse drivers make after hitting a cyclist — or has otherwise failed to exercise due care, the choices most often available to police and prosecutors are to do nothing, or to charge the driver with a minor offense that does not reflect the harm the driver actually caused.

This discrepancy in how cases are handled is not the result of a deliberate bias against cyclists and toward motorists, but it is nevertheless the result of a built-in bias in the system. This inherent bias is based on an underlying, unspoken assumption in the law that those who use our roads will be driving cars. Thus, minor lapses of due care may result in bent fenders, and insurance claims filed. At most, law enforcement may issue a citation where a statute has been violated—a citation for an unsafe lane change here, a citation for failure to yield the right of way, there. In a minor collision between two motorists, this system results in justice commensurate with the degree of harm caused. And because more serious collisions between two motorists are typically the result of a more serious degree of driver negligence, more serious charges, which require a more serious degree of driver negligence, are available to law enforcement and prosecutors. Again, this system results in justice commensurate with the degree of harm caused.

But collisions between motorists and more vulnerable road users, such as pedestrians and cyclists, are often not “minor collisions,” even though they would have been minor had they occurred between two motorists. And because these drivers have not exhibited the degree of recklessness, gross negligence, or criminal negligence usually necessary for a conviction on more serious charges, we see drivers who kill being cited for things like “unsafe passing” instead of vehicular homicide. But we also see drivers being let off entirely, as we saw in Maine, when police let off with a “warning” the driver who injured Susanne Kibler-Hacker. Even worse, and unfortunately, also common, is for the police to fail to file any charges against drivers who kill pedestrians or cyclists. This was the case with the Sheriff’s Dept. in Bexar County, Texas, when a driver killed Gregory and Alexandra Bruehler. And sometimes, we even see law enforcement bending over backwards to get the driver off the hook by shifting the blame to the cyclist, as we saw in Incline Village, Nevada, when a teen driver turned left across the path of Lloyd Clarke. When cyclists are injured or killed, and the charges do not reflect the harm done—or worse, when there are no charges at all—our “system of justice” actually results in a failure of justice.

The basic problem we face is that in most states there are appropriate penalties for drivers who commit minor offenses like failure to yield, and there are appropriate penalties for drivers who commit the most egregious offenses, like killing somebody while driving drunk. But there’s no middle ground—no appropriate penalties for those who kill through carelessness, and no justice for those who were killed because somebody else shirked their duty to exercise due care.

Nobody wants to treat an accidental injury or death resulting from this failure exactly the same as we treat an injury or death resulting from egregious behavior like drunk driving; that would be unjust. But it is also unjust to treat these injuries and deaths exactly the same as we treat a minor traffic violation: Justice lies between these two extremes. By creating a graduated range of offenses and penalties that reflect both the driver’s failure and the actual harm done, we can fill in these missing pieces in our vehicle codes. An example of such a series of offenses might range from a simple traffic violation (like failure to yield), to a traffic violation resulting in injury, to a traffic violation resulting in death, to a serious traffic offense (like DUI or excessive speed) resulting in death. Penalties would be commensurate with the seriousness of the offense.

As Andy Thornley notes, when drivers who injure or kill are not held accountable, we send all drivers the wrong signal about what is expected of them, and consequently, they have less incentive to be careful. By filling in the missing pieces of the vehicle code, we send the right signals to drivers about what is expected of them while operating potentially lethal machinery.

This is not just theory; we can see it in action.

In the Netherlands, drivers who collide with cyclists are presumed by law to be at fault; in contrast, in the United States, injured cyclists must prove that the driver who hit them is at fault. Guess which country has the more careful drivers? In the United States, the most common excuse drivers offer after colliding with a cyclist is “I didn’t see him.” Dutch drivers don’t offer that excuse, because it usually won’t absolve them of liability. In that sense, the law is helping Dutch drivers to see cyclists. “Reasonable human beings in other countries see the cyclist,” Andy Thornley notes. “How can we help drivers here to look harder?” Through laws that send the right signals when drivers fail in their duties to others.

In some states, bicycle advocates are already making these efforts. For example, in Washington, the Cascade Bicycle Club is lobbying for a vulnerable user bill modeled after Oregon’s vulnerable roadway user law. This legislation, if passed, would impose enhanced fines, license suspension, and driver re-training on those who seriously injure or kill a vulnerable roadway user.

Meanwhile, in Oregon, the Bicycle Transportation Alliance is building on its past success with the vulnerable roadway user law; this legislative session, the BTA will continue its lobbying efforts for a vehicular homicide statute (a similar bill died in committee last year). This statute will create a new misdemeanor offense for drivers who kill while violating a traffic law. And if the driver kills while on a suspended or revoked license, the offense becomes a felony.

In California, the San Francisco Bicycle Coalition is currently considering proposing similar legislation that would help fill in some of these missing pieces of the California Vehicle Code.

None of these legislative proposals are a complete fix for the problem; for example, although the Oregon proposal addresses drivers who kill while committing an offense, it doesn’t address drivers who injure while committing an offense. However, it and the other legislation is a step in the right direction. The West Coast isn’t alone in this push, either; similar legislative efforts are under way in Illinois, New York, and Rhode Island. Still, there is much work to be done in almost every state.

The biggest obstacle to progress is that there is all too often no political will to address the problem. We don’t even have social consensus that a problem exists, and without it, legislators see no need to take action. As an example, recognize that until MADD had a groundswell of support — angry, grief-stricken mothers testifying before state legislative bodies, and, importantly, also on television - efforts to pass and enforce stronger drunk driving laws, DUI, went unheeded. Until recently, there was no social consensus regarding texting while driving. Now, people are beginning to recognize that texting while driving is dangerous, and we are beginning to take steps to create legal penalties for it.

The lack of justice for those who are killed or injured by negligent drivers is no less disgraceful, but in order to get drivers to “see” cyclists and pedestrians we will need to first create the social consensus that there is a problem and that it is not being addressed by the status quo.

If we have the vision, the energy, and the will to make the changes we need to make, we can change that status quo. We can take steps to make our roads safer for all who use them, and we can take steps to bring to justice those who bring harm to others through their failure to exercise due care. And then, as in the Netherlands, when drivers know they will be held accountable for not seeing cyclists, we will perhaps see our roads become safer.

This is a vital legal issue for cyclists and I will continue to cover legislative efforts to address it this year. Stay tuned, and in the meantime, please share your thoughts and ideas on the subject.

Now read the fine print:

Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.

After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske's practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).

Mionske is also the author of Bicycling and the Law, designed to be the primary resource for cyclists to consult when faced with a legal question. It provides readers with the knowledge to avoid many legal problems in the first place, and informs them of their rights, their responsibilities, and what steps they can take if they do encounter a legal problem.

If you have a cycling-related legal question, please send it to mionskelaw@hotmail.com Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at www.bicyclelaw.com.

Important notice:

The information provided in the "Road Rights" column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.